Citation: Haydon v R [2012] NSWCCA 151
Court: Court of Criminal Appeal, New South Wales
Date: 16 July 2012
Judges: McClellan CJ at CL, Price J, Button J
Background
The appellant pleaded guilty in the District Court to aggravated break and enter with intent to commit larceny, contrary to s 113(2) of the Crimes Act 1900, committed in company with a co-offender. Three additional matters were taken into account on a Form 1 (a procedural mechanism by which related charges are considered on sentence without separate conviction), including taking a vehicle without consent, receiving stolen property, and displaying an altered number plate.
The appellant was sentenced to a non-parole period of 2 years and 2 months for the aggravated offence, with a head sentence of 3 years and 3 months. This sentence was accumulated upon an earlier sentence for a separate break-and-enter offence committed later the same day, which was itself accumulated upon Local Court sentences for driving matters. The total effective non-parole period across all sentences reached 4 years and 4 months.
The co-offender, sentenced on the same day for the same aggravated break-and-enter offence, received a non-parole period of 13.5 months with a head sentence of 18 months. The appellant's head sentence was more than 100 per cent greater than the co-offender's. This disparity formed the sole ground of appeal.
Legal Issues
- Whether the disparity between the appellant's sentence and the co-offender's sentence gave rise to a justifiable sense of grievance sufficient to warrant appellate intervention on parity grounds.
- Whether differences in objective criminality, individual Form 1 matters, and subjective circumstances adequately explained the sentencing disparity.
- Whether s 52(1) of the Crimes (Sentencing Procedure) Act 1999 could be used to correct the commencement date of the appellant's sentence following a post-sentencing correction made in the Local Court.
Decision
On the parity ground, Price J (with whom McClellan CJ at CL and Button J agreed) dismissed the appeal. The court reaffirmed that a marked disparity must give rise to a justifiable sense of grievance before appellate intervention is warranted. A reasonable person, looking at the full circumstances, must regard the grievance as justified.
The court found that the agreed statement of facts clearly showed the appellant played a more active role in the offence. The appellant was observed inside the shed cutting padlocks, attempting to remove colourbond panels, and ultimately fleeing from police, while the co-offender's involvement on the day was less active. The judge, when reading the sentencing remarks as a whole, had implicitly recognised this distinction.
Additional differences also justified the disparity. The three Form 1 matters were unique to the appellant and bore directly on the gravity of the principal offence. The co-offender faced different totality considerations, having a parole revocation and a bond to contend with, whereas different accumulation and concurrence arrangements applied to the appellant. The court concluded that the judge made appropriate allowance for these differences, and no justifiable sense of grievance was established.
On the correction issue, a Local Court "slip rule" amendment made after the District Court sentencing had inadvertently extinguished one month of concurrency the District Court judge had intended. Both parties agreed the commencement date of the s 113(2) sentence should be brought forward by one month to restore that intended overlap. The court held that s 52(1) of the Crimes (Sentencing Procedure) Act 1999 was available to vary the commencement date in this way, promoting the efficient administration of justice without requiring the matter to be remitted to the District Court.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
- The commencement date of the sentence for the aggravated break-and-enter offence (s 113(2)) was varied pursuant to s 52 of the Crimes (Sentencing Procedure) Act 1999, so that the non-parole period of 2 years and 2 months commences on 25 June 2012 and expires on 24 August 2014, with a balance of term of 1 year and 1 month expiring on 24 September 2015.
- The appellant became eligible for parole on 24 August 2014.
Key Takeaways
- Appellate intervention on parity grounds requires that a reasonable person, looking at all the circumstances, would regard the co-offender's lesser sentence as producing a justifiable sense of grievance in the appellant. A large numerical disparity alone is insufficient to meet this threshold.
- Where co-offenders played materially different roles in a joint offence, sentencing courts are not required to make express findings distinguishing their objective criminality in their remarks, provided the distinction is apparent from the agreed facts and the overall sentencing approach.
- Form 1 matters that are unique to one co-offender can legitimately explain a significant difference in the sentences imposed on otherwise comparable offenders.
- Different totality, accumulation, and concurrence considerations applying to each co-offender are a recognised basis for sentencing disparity, and the court confirmed these differences warranted close attention rather than a mechanical comparison of headline figures.
- Under s 52(1) of the Crimes (Sentencing Procedure) Act 1999, an appellate court may vary the commencement date of a sentence to correct an unintended consequence arising from a post-sentencing amendment in a lower court, without remitting the matter for resentencing.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 112(1)(a), 113(2), 154A(1)(a), 189
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 52(1)
- Road Transport (Vehicle Registration) Regulation 2007 (NSW): s 85(2)(a)
Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Ilbay [2000] NSWCCA 251
- R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7
- R v Kollas and Mitchell [2002] NSWCCA 491